DOJ Has 60 Days To Appeal Ruling That Declared DOMA Unconstitutional

Hot on the heels of the Prop 8 ruling in California that determined a ban on same sex marriage violates California’s constitution, a federal judge officially entered his judgment in a case challenging the Defense of Marriage Act, giving the federal government 60 days to decide whether to appeal.

Judge Joseph Tauro ruled in early July that DOMA, which defines marriage as between one man and one woman, is unconstitutional. Yesterday, he officially entered the judgment, starting a 60-day clock for the Justice Department to decide whether to appeal his ruling.Tauro also approved a stay for his ruling, pending appeal. The plaintiffs, represented by GLAD, didn’t fight the stay. GLAD said the stay is in its clients’ best interests, adding that only a “final victory” ensures that they will have access to the Social Security and other benefits of their spouses.

The DOJ has not yet decided whether to appeal the case, the head government lawyer told the Bay Area Reporter.

It’s unlikely the government would decline to pursue the case, but the Obama administration took a big hit among LGBT rights advocates (and voters) last year when it filed a brief defending DOMA and comparing same sex marriage laws to those against incest and child marriage.

The end of the 60 days falls on Oct. 11 — National Coming Out Day and less than a month before the midterms.

For now, two landmark same sex marriage cases are waiting at about the same stage of the game.

Prop 8 supporters have already filed an appeal. But there are some questions as to whether they actually have the standing to do so — the proposition’s supporters aren’t the actual defendants in the case. The actual defendant is the state of California, which, under the current governor and attorney general, won’t appeal.

Both are stayed pending appeal, meaning the victories for same sex marriage supporters have not yet translated into any practical change.